FDR's court plan - 50 years later

ByThomas V. DiBaccoFebruary 17, 1987

FIFTY years ago President Franklin D. Roosevelt announced a plan to reorganize the Supreme Court. Buoyed by his landslide election in 1936, he hoped to change the political temper of the court from one that saw New Deal legislation as unconstitutional to one that welcomed the same bills as constitutional. The plan would have added a judge to the court whenever one who had served a decade or more failed to retire within six months of reaching age 70. Fifteen would have been the maximum number of justices. At the time, FDR's plan was modest compared with some other proposals. One urged a constitutional amendment negating the court's power to declare congressional acts unconstitutional. Another would have given Congress the power to override the Supreme Court by a two-thirds vote of both houses.

The ostensible argument that FDR made in proposing the plan was that with more justices, more cases could be handled with dispatch, and the nation would be better served.

That argument was specious at the time. Critics pounced upon the President for wanting to ``pack'' the court with his appointees. Still, FDR's measure probably would have been enacted, had not the court begun to change its constitutional tune, validating more New Deal legislation, and had not a justice resigned in May of 1937.

The argument is not specious today, however. A modification of FDR's proposal, with additional justices designed to ensure that Supreme Court cases be decided more swiftly, would be welcome. It would also be in line with congressional responsibility to fix the number of justices. The total has ranged from five to 10. The current number of nine was set in 1869.

This proposal would no doubt stir enormous controversy; additional appointees could change the political temper of the court, and some critics would contend that the constitutional separation of powers was being breached. The latter contention led Sen. George W. Norris to remark in the 1930s that ``the people can change Congress but only God can change the Supreme Court.''

But most important is the constitutional premise that justice delayed is justice denied. And one cannot ignore the fact that the court has a calendar-year schedule that is anachronistic in today's society, with a summer vacation that stretches to October. If nothing else, a proposal to effect changes in the court's membership might accomplish the intended result that it did for FDR. What the nation needs today is a court that gives evidence that it works as hard as its workload necessitates, rather than the more leisurely pace that characterized a 19th-century nation that was short on laws and much more tolerant of time.